33 S.W. 476 (Mo. 1895), McCollv. Boughton

Citation:33 S.W. 476, 132 Mo. 601
Opinion Judge:Barclay, J.
Party Name:McCollum v. Boughton, Appellant
Judge Panel:Barclay, J. Brace, C. J., and Gantt and Burgess, JJ., dissent. Macfarlane, Sherwood, and Robinson, JJ., concur. Brace, C. J., and Gantt and Burgess, JJ., dissent. Macfarlane, Sherwood, and Robinson, JJ., concur. Gantt Gantt, J. -- (dissenting).
Case Date:December 23, 1895
Court:Supreme Court of Missouri
 
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Page 476

33 S.W. 476 (Mo. 1895)

132 Mo. 601

McCollum

v.

Boughton, Appellant

Supreme Court of Missouri

December 23, 1895

132 Mo. 601 at 617.

Original Opinion of May 14, 1895, Reported at: 132 Mo. 601.

Barclay, J. Brace, C. J., and Gantt and Burgess, JJ., dissent. Macfarlane, Sherwood, and Robinson, JJ., concur.

OPINION

Barclay, J.

Since the transfer of this cause to the court in banc, we have been favored with an opinion of our learned Brother Gantt, upon which he would reach a judgment affirming that of the circuit court. His comments on the case seem to call for a few remarks supplemental to the opinion delivered in the first division.

Our learned brother advances the proposition that Mrs. Boughton and the plaintiff should both be treated as sureties for Mr. Boughton, her husband. That opinion is based upon two distinct grounds, if we correctly analyze the reasoning: First, that the legal effect of the instruments was to make her a surety for her husband; and, secondly, that "it was entirely competent to receive parol evidence of the collateral contract between Boughton and the plaintiff, McCollum, Ulen, and Malone, that they were only sureties for Boughton." We will examine each of these grounds.

1. By the terms of the deed of trust, Mrs. Boughton was, no doubt, surety for her husband, as he was [132 Mo. 613] one of the signers of the secured note. But that proposition is stated and used as though she became surety for her husband only, and not surety for the note, with its other signers besides her husband. According to the deed, her land became bound for the payment of the note by those whose promise to pay it contains, namely, the four makers, of whom Mr. Boughton was but one. If (as my Brother Gantt appears to intimate) the deed of trust made her surety for her husband only, then the conclusion he points out might follow. But that interpretation of the deed is erroneous, and that error is a radical one. It vitiates the whole argument that our learned brother has founded upon it. The decision cited to confirm it (Wilcox v. Todd, 64 Mo. 388) deals with a case in which a husband (alone) borrowed money, and, to secure his debt, he and his wife joined in a deed of trust conveying a piece of land belonging to the wife, as well as another piece belonging to the husband. It was held that she was surety for her husband as to her piece of land so conveyed. That case falls far short of deciding that the legal effect of the instruments (namely, the note and deed of trust in this case) was to make her a surety for her husband, if by that statement the husband alone is meant. The effect of those instruments seems to us quite different. The principle declared in the very precedent cited sustains the conclusion we would reach on the present appeal, provided we are right in interpreting those instruments to mean this: that Mrs. Boughton conveyed her legal estate to secure payment of the note by its signers. If, as to her, all the makers of the makers of the note are primarily liable, and her land is security for the debt represented by the note (which all of them signed), then [132 Mo. 614] it must follow that no one of the makers of the note can eject her from the land by a title obtained through that very deed of trust.

The crucial question, then is, what is the

Page 477

correct meaning of the deed of trust? Did it bind Mrs. Boughton's land to secure the debt of Mr. Boughton or the debt of all the makers of the note? Can there be any reasonable doubt that, on the face of that instrument, the land is conveyed in trust to secure payment of the note, and the note is recited as signed by four persons, of whom plaintiff is one and Mr. Boughton another? How, then, can it be properly held that all the signers of the note are not primarily liable, as against the land conveyed to secure it, when the terms of the deed make no distinction whatever between them in respect of their liability as makers? So far as appears from the note and deed of trust, all the makers of the note are principals. Its language is, "We promise to pay," and all sign that promise. What rule of law justifies the holding that only one of these makers is the principal, and that the others are only sureties for that one, assuming now that we stick to the construction of the paper itself? No word or suggestion in the deed of trust is pointed out to sustain the position that, on the face of that instrument, its legal effect was to make Mrs. Boughton's land any more a security for her husband than for the other signers of the note. That effect could be given it only if the law were such that she might mortgage her land to secure a debt of her husband, but not to secure the debt of any one else. But there is no such distinction recognized by the law of Missouri. If a wife, at the time of the deed in question (1888), joined her husband in a conveyance of her legal estate, in the manner prescribed by the statute touching such instruments (Rev. St. 1879, sec. 3296), the [132 Mo. 615] conveyance could as validly secure a debt of a third party as a debt of her husband. That proposition was assumed as the basis for the judgment reached in Rines v. Mansfield (1888) 96 Mo. 394, 9 S.W. 798; and there can be no...

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